Briefing Note on arrangement between eircom and the Irish Recorded MusicAssociation (IRMA) with regard to Copyright InfringementMarch 2009BackgroundFour major record companies, EMI, Sony, Universal and Warner initiated legalproceedings against eircom seeking to compel eircom to deploy monitoring/filteringtechnologies on its network to identify and prevent copyright infringement throughthe use of P2P file sharing. The action was brought under the Irish Copyrightlegislation.The hearing was held in the Irish High Court in January 2009. After eight days attrial, the legal proceedings were settled. The approach to be adopted as part ofthe settlement will not involve eircom engaging in any form of monitoringactivity.Current PositionSince the legal proceedings ended, both parties have been engaged in detaileddiscussions regarding how the settlement will be implemented. These discussionsconcern very complex legal and technical issues. The discussions have not yet beenconcluded.Key Points of the Draft ProtocolIt is important to note that the agreement meansthat:• eircom will not monitor its customer's activities at any stage.• eircom will not implement any form of monitoring equipment or softwareon its network.• eircom will not provide personal details or any information relating toitscustomers to any third party, including the record companies. No personaldata will be transferred from eircom to the record companies which would enableany customer of eircom to be identified. eircom has agreed to keep confidentialand will not disclose any information concerning its customers to the recordcompanies and it will in particular observe in all respects the laws on dataprotection.1. Notification/Certification:The agreement between the parties provide that the record companies will supplyeircom with the IP addresses and evidence of the infringement of those the recordcompanies detect illegally uploading or downloading copyright works on a peer topeer (P2P) basis.The draft protocol being negotiated by the parties sets forth the level of detailrequired by eircom from the record companies in relation to the notification bythem of iinfringements by customers.Under the draft protocol, the notification shall include the following information(at a minimum):details of copyright holder (name and address);why the notification is being sent (i.e. setting out thebreach ofcopyright);the actual copyright work that has been infringed(information oncopyright material, for example artist, song, title and albumtitle);the IP address;the time stamp of when the investigation was initiated;the time stamp of when the investigation was completed,the peer to peer application/software used by the customer;
and,the digital fingerprint/hash for copyright material detected;The last item, the digital fingerprint/hash of the copyright material detected,allows eircom to verify that the copyright work identified by the record companiesis in fact owned by them.In addition, the information which will be provided by the record companies willbe of the same type as that used in the three previous disclosure actions in theIrish High Court involving the parties and eircom will not act upon a notificationfrom the record companies that does not contain the information set out above.eircom has also requested that the record companies provide independentcertification that the notification has been lawfully obtained by and on behalf ofthe record companies.The record companies are also to provide reputable annual independentcertification that the necessary legal, I.T., entity level and regulatory controlsrelating to the obtaining, generating and processing of data by Detecnet (or anyother supplier engaged by the record companies) have been complied with.2. Graduated Response:eircom has agreed that it will from now on implement a graduated process in whichit will;1) Inform its broadband subscriber that the subscribers IP address has beendetected infringing copyright; and2) On a second occasion of being detected infringing copyright, warn thesubscriber that unless the subscriber ceases to infringe copyright the subscriberwill be disconnected; and,3) On a third occasion of being detected as infringing copyright, and havingreviewed the position, the subscriber will be served by eircom with a terminationnotice and, subject to extenuating circumstances arising, will be disconnectedthereafter. eircom has not agreed to block any Internet sites from being accessedby end-users.As part of the settlement of the above proceedings, it was agreed that eircomwould not oppose an application by the Plaintiffs to seek to have eircom blockaccess to the Pirate Bay website. The Music Industry will still have to establish,in the normal way that there is an appropriate basis for the relief which theyseek from the Court. eircom is not supporting or consenting to the application.The settlement makes no provision for any site other than the Pirate Bay website.At all stages in the graduated process, customers will have the right to complainand make representations to eircom if they feel that they have beeninappropriately orincorrectly identified as infringing copyright. eircom willdeal with all representations formally made by customers. The existing broadbandsupport processes and platforms which eircom uses will also be used to log, trackand report on all customer interactions related to copyright infringement. eircomwill respond to complaints and representations made by its customers bothinternally and with other parties.eircom has also reserved the right to remove a customer from a particular level ornot to effect a disconnection where eircom has received representations orcomplaints and believes that the infringement as alleged has not taken place orwhere there are particular extenuating circumstances which would make thedisconnection of the customer unjustified.eircom will engage with that person at all times to ensure that there is a fullunderstanding of the issues and that any accidental or unintentional infringementcan be identified and remedied.Disconnection will follow only when eircom is totally satisfied that there isclear evidence of sustained copyright infringement, that the alleged infringingperson has had sufficient opportunity to explain its circumstances and that allpossibilities that the person was a victim of accidental infringement have beeneliminated. eircom is satisfied that if all of these conditions are met, it isentirely proportionate to disconnect the High Speed Internet Access Service. Theeircom supply contract with individual customers explicitly states that service
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Eircom Irma Briefing Note March 2009
Agreement between Ireland's biggest ISP and IRMA the music rights society on 3 strikes out policy. Also note proposed shut down of Pirate Bay in Ireland.
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